Criminal Law, Unintentional Offenses, Involuntary Attacks, Violence Against Minors, Public Service Mission, Penal Code, Public Health Code, Criminal Irresponsibility, Legitimate Authority
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Abstract
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Abstract
Analysis of criminal responsibility in cases of unintentional offenses, including involuntary attacks on life and violence against minors.
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[...] It follows from a judgment rendered by the Criminal Chamber of the Court of Cassation on 18 November 1976 that 'the surgeon is guilty of involuntary homicide who has been found to be negligent and whose negligence is causally related to the death of the operated patient'. Minor: In this case, the patient dies while the operation/intervention was unnecessary. Thus, the surgeon was negligent. He did not respect the obligations set out in particular by Article L110-1 of the Public Health Code, which applies to him. This article provides that medical acts must be carried out in respect of both the needs and the health of the patient. [...]
[...] He did not apply the orders of the law and the legitimate authority that applies to him properly. Conclusion: The moral element of the offense is characterized. ? Under the risk of not having more information on the facts, the surgeon faces a sentence of three years' imprisonment and a fine of ?45,000. As for the causes of criminal irresponsibility, the causes of exoneration such as the order of the law, legitimate defense, state of necessity or even force majeure do not seem to apply to him in this case. [...]
[...] In fact, the jurisprudence seems to be strict on this point: physical violence exceeds the disciplinary power that teachers have. The question of legitimate defense may arise here in that Anne attempted to force her way in by violently opening the door. However, for legitimate defense to be recognized, the defensive act must be proportionate to the attack. However, the kick given seems to be an excessive reaction. In fact, it is not a situation of immediate danger to the teacher's safety, but rather an attempt to control a student who had insulted him. [...]
[...] Here, it is clearly indicated that the intervention was completely unnecessary. Nevertheless, the doctor was negligent, he took risks. These risks led to the loss, the death of the patient. The doctor thus committed a fault. Conclusion: The material element is characterized in all its elements. The moral element Major: Article 221-6 of the Penal Code is concerned with involuntary attacks on life: simple clumsiness, imprudence, inattention, negligence or failure to meet a duty of prudence or safety are sufficient to characterize the offense from the moral element. [...]
[...] Minor: In this case, Anne insulted her teacher and more specifically she uttered these words: \"bastard, son of a asshole\". These are indeed words addressed to a person in charge of a public service mission, teaching, against her teacher. Indeed, under the jurisprudence, teachers/ instructors fall into the category of persons charged with a public service mission. These coarse words are likely to undermine the dignity and/ or respect due to the function, particularly insofar as they were uttered in front of a whole class. The text added the aggravating circumstance of the place, \"the school\". [...]
